Whom to Blame for Oroville — and How President Trump Can Fix It

The forecast is for more rain around the Oroville Dam - and potential disaster for hundreds of thousands of Californians living downstream from its poorly designed emergency spillway.

Many bear responsibility for the real prospect of a catastrophic failure of that spillway. But ultimately, the buck stops with an obscure government agency 3,000 miles away: the Federal Energy Regulatory Commission (FERC).

FERC has known about systemic defects of the Oroville Dam for over a decade. In fact, back in 2005, this dam was supposed to be relicensed for fifty-years. But objections were heard from various citizen groups. They warned about soil-erosion at the emergency spillway giving rise to the potential for its catastrophic failure during high water conditions like those now present. Their calls for the spillway to be reinforced with concrete were ignored by the FERC which, instead, began granting annual one-year operating licenses in 2007.

Those licenses have been renewed on the basis of a "Potential Failure Mode Analysis" of the Oroville Dam. According to an October 14, 2016 letter sent by FERC's Office of Energy Projects to the California Department of Water Resources, the latest Failure Analysis - which was submitted to FERC in December 2014 - was "a significant improvement" over its predecessor. The public is being kept in the dark about this justification for ignoring the actual, high potential for failure of this dam, however, because FERC treats these these Failure Analysis documents as secrets.

Unfortunately, this catastrophe-in-the-making in California is just one example of FERC's shortcomings. The agency is overwhelmed by its extensive regulatory responsibilities and it is often captured by regulated interests. Consider the following contributing factors:

FERC is charged with overseeing far more than the nation's dams. Each year, the agency processes over 1,000 orders for, among other things, electric utilities, natural gas pipelines, and hydroelectric facilities, with limited time for any individual matter, no matter how important.

FERC routinely adjudicates complex technical matters, yet many FERC commissioners in recent years have been lawyers, congressional staffers or lobbyists.

In addition, and especially of late, the five ostensibly "independent" FERC Commissioners have taken advantage of a "revolving door" between their official positions and well-paid jobs at entities they regulate - or the law firms or lobbying shops that serve them. For example, former FERC Commissioner Phillip Moeller left the commission to be a lobbyist at the Edison Electric Institute; former Commissioner Tony Clark left to become a counsel at a law firm serving utilities. (For more evidence of such inherent conflicts of interest, see here, here and here.)

Given this sweetheart-deal dynamic, it should come as no surprise that FERC has earned a reputation for serving as a "rubber stamp" for industry interests.

Bad as the dangers associated with FERC's failure to assure the safety of the Oroville dam are, these factors have contributed to the agency's culpability for even more serious malfeasance: the uncorrected vulnerability of the U.S. electric grid to physical, cyber and electromagnetic pulse attack, as well as to the effects of intense solar storms.

Should the grid - our most critical of critical infrastructures - suffer widespread and sustained collapse as a result of one or the other of those very real dangers becoming reality, the consequences would dwarf those associated with massive flooding of areas below the Oroville Dam.

These potential catastrophes underscore a long-neglected reality: The safety and security of the American people requires that the Federal Energy Regulatory Commission have as commissioners individuals who have been, are and will remain genuinely independent from the industries that their agency regulates. This is especially so as the commissioners are, by statute, essentially unaccountable to either the President or Congress.

As it happens, three out of five FERC commissioner slots are currently open. It is imperative that President Trump nominates, and the Senate confirms, only commissioners who will have the requisite technical expertise, independence and vision to use their considerable power to protect the people of this country, and not simply the utilities they regulate.

Frank Gaffney is the Founder and President of the Center for Security Policy in Washington, D.C. Under Mr. Gaffney's leadership, the Center has been nationally and internationally recognized as a resource for timely, informed and penetrating analyses of foreign and defense policy matters. Mr. Gaffney formerly acted as the Assistant Secretary of Defense for International Security Policy during the Reagan Administration, following four years of service as the Deputy Assistant Secretary of Defense for Nuclear Forces and Arms Control Policy. Previously, he was a professional staff member on the Senate Armed Services Committee under the chairmanship of the late Senator John Tower, and a national security legislative aide to the late Senator Henry M. Jackson.

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